Vaish International Pariwar S/By ... vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 1212 Del

JUDGMENT

S. Mukerjee, J.

1. This writ petition, in the nature of PIL, was originally filed by Vaish International Pariwar, as petitioner, praying for protection, preservation and maintenance of a waterbody and monument/ "Baoli" by the name Uggarsain-Ki-Baoli.

2. A prayer was made for preventing and/or stopping the construction of a multi-storeyed residential building proposal on the adjacent property No. 1, Hailey Road, New Delhi of respondent No. 7 (M/s Ansal Properties and Pvt. Ltd.), being executed under a collaboration arrangement with the owners of the said property No. 1, Hailey Road, New Delhi. The Union of India is the first respondent while ASI respondent No. 2. NDMC is respondent No. 3, DUAC is respondent No. 4 while DDA and L&DO, are respondent No. 5 and 5 respectively. The original owners of the plot were subsequently imp leaded, on their request, as respondent No. 8.

3. It is the case of the petitioner, that the multi-storeyed building project at 1-Hailey Road, was allegedly/ without proper sanction, and also in contravention of the Ancient Monument and Archaeological Sits and Remains Act, 1959. It was further contended that the original area of the "Baoli", not being properly demarcated, as such the building, when constructed, would completely conceal the view of the monument and would destroy the ancient character of the Baoli, and would also adversely affect its water level.

4. It is contended that the Archaeological Survey of India (Delhi Circle), had allegedly taken up the matter with NDMC, DDA and Delhi Urban Arts Commission, not to permit any modern construction in the vicinity of Uggrasain-Ki-Baoli situated at Hailey Road, New Delhi.

5. It was another grievance of the original petitioners that the project of M/s Ansal Properties and Industries Pvt. Ltd. (respondent No. 7) at 1 Hailey Road, for construction of Multi-storeyed Apartments, was liable to be prohibited just and only on account of its proximity to this "Baoli"

6. After notice to show cause was issued on 22.4.1992, the matter was taken up for consideration on various dates from time to time. Various affidavits also came on record filed by the several respondents.

7. The contesting private respondent (M/s Ansal Properties) with whose affidavit the narration on this aspect may conveniently commence, in their affidavit dated 11.5.1992, took up the stand that this Plot No. 1, Hailey Road was a duly demarcated plot measuring 1.69 acres, and the lease deed was itself accompanied by a site plan. According to the said respondent, the Zonal plan finalised for the area, contained details of various plots, roads, parks and also the "Baoli" and that construction of residential apartments was permissible in law, on this plot No. 1, Hailey Road, Moreover, specific permission had been granted in their favor by the L&DO for re-development of this plot into a Multi-storeyed Group Housing Project. Initially an amount of Rupees one Lakh had been deposited at the stage of seeking the terms for conversion in relation to the user, and subsequently a huge amount of Rs. 34,20,658/- was also paid to the L&DO, whereupon, vide letter dated 5.2.1990, the L&DO granted final NOC for sanction of building plans by the NDMC.

8. Vide sanction order dated 4.10.1990, the building plans were also approved by the NDMC, which had referred the matter to the Delhi Urban Arts Commission. The latter had, in turn, invited the comments of the Archaeological Survey of India.

9. According to the said reply affidavit, the construction started in July 1991 and the project cost of the Multi-storeyed building was about 10 crores. Furthermore the user of the plot as a multi-storeyed apartment, had been fixed, after due notice to the public and other authorities, and the construction aspect of the project was also in accordance with statutory plans and Building Bye-Laws.

10. Furthermore it is contended that the user as well as the F.A.R. had been all fixed after taking into account the "Baoli" and in fact the Zonal Plan had been approved by the Central Government itself. It was also contended that the proposed construction was neither adjoining to, nor adjacent to the "Baoli" and that it was simply in the vicinity of the "Baoli" According to Respondents 7 and 8, there can be no prohibition on the ground of mere proximity, since near to the Jantar Mantar monument also, there are so many buildings which had come up in recent times, including the NDMC building itself. It is also contended that one entire block of proposed flats at 1 Hailey Road, New Delhi has been deleted/not been constructed on the site towards the "Baoli", and that due to the said deletion of one entire block, all genuine public interest considerations stood satisfied thereby. Moreover the deletion of one complete block had caused grave prejudice to the rights of the private respondents.

11. The ASI also field an affidavit dated 13.2.2001 in which it contended that they had made available all the required inputs from their side to the Delhi Urban Arts Commission. It is further admitted that though ASI had been informed by the NDMC about the Zonal Plan etc., yet the ASI had not responded to the same. It is admitted by ASI that its representative was present at various stages when Delhi Urban Arts Commission was considering the matter, and also on the north-west side of this project, the stilts plus a seven storeyed proposed block accommodating faults on each of the seven floors, had been totally deleted. The delhi Urban Arts Commission also therefore prayed that the writ petition be dismissed.

12. The ASI had initially filed a counter affidavit dated 25.5.1992 in which the ASI claimed that apart from conveying its apprehensions from time to time to the other Government departments, a proposal was submitted to DG, ASI vide DO Letter dated 26.3.1991. The actual formal Notification inviting objections, had been issued only on 15.5.1991 whereafter, according to them, the clearance/ No Objection of ASI was required for purposes of construction.

13. Subsequently an additional affidavit dated 15.9.1992 was also filed by the ASI in which it (ASI) tried to counter the version of the DUAC and NDMC apart from stating that on more than one occasion the ASI had duly conveyed its stand regarding the preservation of the "Baoli" to both the Delhi Urban Arts Commission and the NDMC.

14. The private respondent No. 7 filed a reply to the counter affidavits filed by the other respondents, in addition to filing its own counter to the writ petition.

15. Thereafter, the matter was heard from time to time on various dates and vide order dated 10.2.1994 it was recorded that the all concerned, including the private respondent, will make due effort to ensure the proper beautification of the "Baoli".

16. It is contended by the private respondent No. 7 that the needful has been done, and the monument had been duly inspected and same has been visited by the petitioners as well as by other respondents, and that there has been no objection pointing out any deficiency in complying with the order dated 10.2.1994.

17. Thereafter also various affidavits got to be filed by the ASI and by other parties, to which replies were also filed by the private respondents. The Secretary of the DUAC also filed an affidavit dated 30.7.2001, in which it was confirmed that the building in question is as per the approval of the DUAC, and is in accordance with the revised plans submitted to it. The matter regarding provisions of Bye-laws, Master Plan, Zonal Regulations, etc. were however stated to be within the realm of the NDMC, who incidently, have also not raised any objection on that account till date.

18. After the matter had been examined in detail as set out above, this Court found that no one was appearing one behalf of the petitioner and in the said circumstances, the Delhi Legal Services Authority was substituted as the petitioner, in addition to direction being issued for the assistance of Mr. R.K. Saini, Advocate of this Court who has been assisting the Court in the matter earlier also.

19. On 5.4.2002 an application for early hearing was allowed and when the matter came up for hearing thereafter, all parties stood duly represented and were heard by us. After we reserved orders, an application CM No 5538/2002 was preferred by the substituted petitioner through Sh. R.K. Saini, Advocate, containing a grievance about not having got the desired opportunity of hearing. While we could not appreciate such an application coming after all parties had been duly heard and even otherwise, there was long delay of about a month with no explanation why learned counsel appearing before the Bench daily, could not have mentioned at the start or close of nay of the immediately subsequent days, we still asked the counsel to come out with his contentions which according to him have been left out. At that stage learned counsel withdraw the application.

20. We have heard the parties at some length. It does appear from the record that the requirement for obtaining a "No Objection Certificate" from the Archaeologial Survey of India, came into existence only in June, 1992 i.e. after the building plans of 1, Hailey Road, had already been sanctioned almost a year earlier on 4.10.1990.

21. In fact, even prior to the construction of this multi-storeyed building, this property No. 1, hailey Road, had all along been a fairly large building existing till then for more than thirty years having three bunglows in the main portion comprising of about 19 bed rooms, 8 bath rooms, 3 drawing-cum-dining rooms, verandas etc. apart from out houses and servants' quarters.

22. It is also clear from the perusal of the pleadings of all the parties taken together, that the NDMC as well as the Delhi Urban Arts Commission, had called upon ASI to convey their opinion on the proposal for sanction of plan, but the said respondent No. 2, for its own reasons, did not respond appropriately to the same. The building plan was thereafter duly sanctioned under the applicable statutory provisions. The private respondents cannot be faulted as they have followed the prescribed statutory process of applying for sanction of plans, and on sanction being accorded proceeded with the construction of the building in accordance with the sanctioned plan.

23. It has also come on record that at the time of sanction of the building plans, one entire block of the flats, which had been proposed on the side near to the wall of the Baoli, was not permitted by the Delhi Urban Arts Commission, and accordingly had been deleted on the submission of revised building plans. The said block has also not been constructed, as per the admitted position as emerging during arguments.

24. The construction was commenced in July 1991, by which time also the Notification dated 18.1.1992 had not come to be issued at all. In fact, even the May 1991, notification, relied upon by petitioner, was published only in the nature of a proposal, and calling for objections from the public at large. As such right till June 1992, there was no prohibition applicable to the construction of this multi-storeyed building project, for which construction had already commenced almost a year, after due sanction of building plans.

25. That apart, the notification of the ASI was also prospective in application and could not have been otherwise also applied retrospectively to the prejudice of the private respondent in whose favor valuable rights had accrued pursuant to the sanction of the building plans which, as already been mentioned above, had been preceded by due consideration by NDMC and Delhi Urban Arts Commission, who in turn had also duly consulted the ASI in the context of the role of ASI as had been applicable at that time.

26. In the above circumstances and there being no sustainable grievance in the petition of the petitioner, this Court vide order dated 10.2.94, very appropriately passed the following directions in the over all public interest, and in the manner required, while hearing a PIL on the subject of the water body (Uggarsain-Ki-Baoli). Relevant portion of order dated 10.2.1994 reads as under:-

" The builder as well as the owner have given the affidavits and undertakings that without going into the merits they shall take care that the beauty and safety of the monument in question would be maintained and preserved and all the servant quarters and hutments located adjacent to the wall of the said Baoli would be demolished and all greenery shall be planted in that area as per model plan and drawings already filed on the record by respondent No. 7. They have also undertaken that there is one tenant in one outhouse and efforts would be made to get that portion vacated from that tenant in accordance with law and that portion would also be demolished and no construction will be raised n that place and the said area will be kept vacant. They have also given the undertaking that if the Archaeologial Survey of India after doing the investigation finds some proof that there was no entrance to the Baoli from the southern side then a passage of six feet shall be made available for having access to that place from Hailey Road as well. They have also given an undertaking that efforts would be also made to maintain the present water level as far as practicable and permissible."

27. The following undertaking had been given in the affidavit dated 10.2.1994:-

"1. The deponent is one of the co-owners of the plot at 1 Hailey Road, New Delhi and an applicant in CM No. 5391/93 in the above mentioned case and in fully competent to swear this affidavit and undertaking.

2. The deponent for and on behalf of all the co-owners of 1 Hailey Road, New Delhi without going into merits of the case and in the context of court proceedings, undertake as follows:-

a) That all the care shall be taken to see that the beauti and sanctity of the monument known as 'Uggarseen-I-Baoli" is maintained and preserved, adjoining the said plot at 1 Hailey Road, New Delhi.

b) All the servant quarter and hutments adjustment to the wall of the said Baoli will be demolished and greenery shall be planted and maintained as proposed by the Respondent No. 7 as per the Model, plans and drawings.

c) That one out house adjacent to the wall of the baoli on its south side presently occupied by the tenant will be got vacated by due process of law in a reasonable time and the same shall also be demolished and vacant area, after such demolition shall also be maintained and preserved as per the plans and drawings on record.

d) That area which fall vacant after the demolition of the out-house of the south side of the Baoli as aforesaid will be kept vacant and no construction whatsoever will be made thereon or allowed.

e) That in case after carrying out investigations by trenching etc. the ASI establishes beyond doubt that there ever existed any original entry to the Baoli from the south side thereof, then in such case a passage of 6" width from the service lane known as Hailey Lane will be allowed.

f) That efforts would be made to maintain the present water level of the Baoli as far as practicable and permissible.

3. That the respondent No. 7 shall start construction forthwith."

28. The builder (respondent No. 7) carried out the required compliances and also filed an affidavit dated 24.2.2000 placing on record the facts that due care is being taken to ensure that the sanctity and the beauty of the monument, known as Uggarsain-Ki-Baoli, adjoining plot No. 1 Hailey Road, is properly maintained and preserved. All the quarters and hutments in the nature of existing construction, adjacent to the wall of the said Baoli, had been duly demolished and greenery planted at the said location. No construction whatsoever was carried out in the portion of the land, which fell vacant after the demolition of the peripheral portion of the property No. 1, Hailey Road New Delhi. An undertaking was also given that the builder would make available a passage of the width of 6 feet from the service lane, in the event of the ASI duly establishing that such a passage had excised for approaching the Baoli from the Southern side. It was also assured that due efforts were made to maintain the water level of the Baoli.

29. The ASI field some objections and suggestions to which the builder also filed a response. These aspects, all involving disputed questions of facts, were primarily on incidental aspects and there was no serious dispute regarding the due maintenance and preservation of the monument and/or the sanctity of the monument and the beauty around.

30. It has also come on record that as recently as 25.7.2001, pursuant to the directions of this Court dated 21.12.2000 and 16.7.2001, as DUCA team visited the building and observed that the said building then at finishing stage, is in consonance with the approval of the Delhi Urban Arts Commission. The final status was however indicated to be subject to the grant of completion certificate by the local body viz. NDMC.

31. In view of the above, and taking into account the totality of the circumstances, which have come on record, including the existence of other buildings such as Banga Bhawan on Hailey Road itself, the NDMC Building, the DLF Centre adjacent to the Jantar Mantar and also other buildings, of which reference has come in the pleadings of the parties, and in particular the applicability of the notification being only prospective (i.e. effective from mid 1992) and after the sanction of the building plans, as well as after the commencement of construction, we feel that no useful purpose will be served in continuing with this PIL petition which has, in a sense served its purpose, in terms of the directions of this Court dated 10.2.1994 on the subject of preserving and maintaining the sanctity of the monument and beauty of the surrounding areas.

32. We accordingly dispute of this writ petition by declining the prayers made in the writ petition but holding respondent No. 7 and all persons claiming rights through or under the said respondent No. 7 bound by the undertaking and assurances given to this Court in relation to the monument and preservation of the monument Uggarsain-Ki-Baoli and its surrounding areas, as well as not to carry out nay fresh construction on the said towards the wall of this monument. Respondent No. 7 and any person claiming by or under said respondent No. 7, shall not do anything to the prejudice of the water level in the "Baoli" and also shall be responsible for ensuring that they do not indulge in any act of commission or omission, which has the effect of causing breach of the assurances held out to this Court as recorded in the order 10.2.1994.

33. Respondent No. 7 besides being bound by the undertakings and assurances held out in the proceedings, is further bound down to include the same as a condition in any document of transfer or alienation or creation of rights in favor of any other person in relation to the whole or any part of the constructed multi-storeyed building at 1, Hailey Road, New Delhi. With these observations, the writ petition is disposed of. The interim orders passed from time to time stands vacated. There will be no order as to costs.